UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

STEPHEN SIZEMORE; PAULA SIZEMORE;

PAULA SIZEMORE, as Guardian ad

Litem for Kamuel Sizemore, a

minor,

Plaintiffs-Appellants,

and

MATSUSHITA ELECTRIC CORPORATION

OF AMERICA,

No. 96-1587

Plaintiff,

v.

HARDWOOD PLYWOOD AND VENEER

ASSOCIATION,

Defendant-Appellee,

and

GEORGIA-PACIFIC CORPORATION,

Defendant.

Appeal from the United States District Court

for the District of South Carolina, at Greenville.

G. Ross Anderson, Jr., District Judge.

(CA-94-2894-6-3, CA-94-2895-6-3, CA-94-2896-6-3)

Argued: April 10, 1997

Decided: June 4, 1997

Before MURNAGHAN and WILLIAMS, Circuit Judges,

and CLARKE, Senior United States District Judge for the

Eastern District of Virginia, sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Robert Paul Foster, FOSTER & FOSTER, L.L.P., Greenville, South Carolina; Robert Daniel Moseley, Jr., LEATHERWOOD,

WALKER, TODD & MANN, P.C., Greenville, South Carolina, for

Appellants. Brock R. Landry, JENNER & BLOCK, Washington,

D.C., for Appellee. ON BRIEF: D. Scott Barash, JENNER &

BLOCK, Washington, D.C.; William M. Grant, GRANT, LEATHERWOOD & STERN, P.A., Greenville, South Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

The Plaintiffs, Stephen, Paula and Kamuel Sizemore, were injured

on December 1, 1991 when their house located in Greenville County,

South Carolina caught on fire. They sued the Hardwood Plywood and

Veneer Association ("HPVA"), a non-profit association of plywood

manufacturers, arguing that HPVA negligently concealed reports

from the late 1960s which would have indicated that plywood was an

unacceptable fire risk. They also allege a civil conspiracy between the

association and plywood manufacturers.

The district court granted HPVA's motion for summary judgment

finding that 1) HPVA owed no duty to Plaintiffs; 2) actions by HPVA

were not the proximate cause of Plaintiffs' injuries; and 3) HPVA did

not conspire with manufacturers to injure the Plaintiffs. Plaintiffs

have appealed.

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FACTS

The Plaintiffs seek to recover damages from HPVA 1 for personal

injuries resulting from the fire. They allege that hardwood plywood

paneling manufactured by Georgia-Pacific and installed in their home

when it was constructed in 1970 was defective and unreasonably dangerous because it was highly flammable and susceptible to rapid

flamespread.

HPVA promotes the use of plywood, monitors and comments on

legislative and regulatory issues affecting the industry, and engages

in testing and research of industry products. Plaintiffs contend that

HPVA misrepresented and concealed information which indicated

that plywood was unreasonably dangerous and flammable. They further contend that but for HPVA's actions, the plywood would not

have been installed in their house and the fire would have been less

severe.

Since 1978, the building code for Greenville, South Carolina has

required that all interior finish materials, including interior plywood,

in single family dwellings must achieve a Class"C" flamespread rating. Prior to 1978, South Carolina had no requirements regarding the

flamespread rating of interior finish materials. At all times, the plywood in Plaintiffs' home has complied with the flamespread requirements of all model building codes including all the building codes in

South Carolina.

Plaintiffs contend that HPVA's continued advocacy of the Class

"C" requirement caused their injuries. As specific evidence of

HPVA's alleged wrongdoing, Plaintiffs point to HPVA's activities in

the late 1960's in response to proposals to amend various building

codes, including the Uniform Building Code, a model building code

promulgated by the International Conference of Building Officials

and used in many Western states. The specific proposal in question

would have required hardwood plywood paneling to be solidly

backed with non-combustible material such as gypsum board.

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1 The district court added Matsushita Electric Corporation of America

("MECA") as a party plaintiff. MECA manufactured a microwave oven

allegedly involved in the fire.

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HPVA commissioned the Southwest Research Institute ("SwRI") to

conduct a study to evaluate the performance of several different types

of interior wall finishes. SwRI built a full-size three room house and

conducted three fire tests of the following interior wall finish materials: (1) gypsum board; (2) hardwood plywood paneling solidly

backed with gypsum board; and (3) hardwood plywood paneling

nailed directly to wall studs. A fourth test, on hardwood plywood paneling that had been treated with a flame retardant coating, was conducted later in 1968. SwRI prepared detailed reports on those tests for

HPVA.

The testing revealed no major difference between hardwood plywood backed with gypsum board and hardwood paneling nailed

directly to wall studs. This was the comparison directly related to the

building code proposal. However, the testing also indicated that gypsum board performed significantly better than plywood in all fire

tests.

The findings regarding plywood and plywood backed with gypsum

board were published in the March 1969 issue of the Fire Journal, a

publication of the National Fire Protection Association. HPVA

approved the publication of the article. The article did not discuss the

gypsum test or the test conducted on fire-retardant treated plywood.

HPVA circulated the Fire Journal article in the late 1960's and

early 1970's to various interested parties in the fire protection community. Internal HPVA documents from this time express a desire to

keep various aspects of the SwRI testing confidential and the HPVA

board of directors required board consideration of any request for the

reports. The record is not clear for how long and to what extent

HPVA concealed the findings in the SwRI tests. However, in 1974,

HPVA submitted copies of all the SwRI test reports to the National

Bureau of Standards which was conducting tests concerning interior

finish materials in mobile homes. In 1977, HPVA went back to SwRI

and asked it to print 500 additional copies of all the test reports so that

HPVA could more widely disseminate them.

Plaintiffs contend that HPVA's activities over the last 25 years

constituted tortious behavior. Plaintiffs further allege that HPVA

acted negligently and recklessly by manipulating the SwRI test proto-

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col and concealing results of the SwRI tests that demonstrated the

flammability of hardwood plywood paneling and the increased safety

of alternatives, and by failing to warn local, state and federal regulatory bodies and the general public about the alleged flammability of

hardwood plywood paneling. Plaintiffs further contend that HPVA

conspired with Georgia-Pacific and others to commit those torts.

The district court granted HPVA's motion for summary judgment

finding that HPVA owed no duty to the plaintiffs, there was no proximate cause, and that there were insufficient facts to support a claim

for civil conspiracy. Since we find that HPVA's activities were not

the proximate cause of Plaintiffs' injuries, we affirm the district

court's decision.

DISCUSSION

The district court granted HPVA's motion for summary judgment

on several grounds. The court of appeals reviews the district court's

grant of a summary judgment motion de novo. Roe v. Doe, 28 F.3d

404, 406-7 (4th Cir. 1994). In ruling upon a motion for summary

judgment, the court must view the facts in the light most favorable to

the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 255 (1986). However, unsupported speculation is not sufficient

to defeat a motion for summary judgment. Felty v. GravesHumphreys Co., 818 F.2d 1126, 1128 (4th Cir. 1987).

The elements for a cause of action for negligence in South Carolina

are duty, breach, proximate cause and injury. Bullard v. Ehrhard, 324

S.E.2d 61, 62 (1984). The district court held that HPVA owed no duty

to the Plaintiffs. Plaintiffs contend that HPVA had a duty 1) to "refrain from any act which will cause foreseeable harm to others even

though the nature of that harm and the identity of the harmed person

or harmed interest is unknown at the time of the act," 57A Am. Jur.

2D Negligence §83, 140 (1989); and 2) under the Restatement (Second) of Torts § 324A (1965).

Viewing the facts in a light most favorable to the Plaintiffs, we find

that HPVA's actions were not the proximate cause of the Plaintiffs'

injuries. Since it is clear that proximate cause is not present, we

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decline to determine whether HPVA owed a duty of care to the Plaintiffs.

In order to prevail, the Plaintiffs must show that HPVA's actions

were the proximate cause of their injuries. Proximate cause is ordinarily a question of fact for the jury. Hill v. York County Sheriff's Dep't,

437 S.E.2d 179, 181 (S.C. Ct. App. 1993). However, the burden of

proof is on the plaintiff. Ryan v. Eli Lilly & Co., 514 F.Supp. 1004,

1018 (D.S.C. 1981). Summary judgment is appropriate if plaintiffs

have shown "no evidence which would tend to prove a causal connection" between the parties. Fleming v. Borden, Inc., 829 F.Supp. 160,

163 (D.S.C. 1992).

Plaintiffs' claim of causal connection in the instant case is insufficient. In order for a causal connection to exist between HPVA's

actions and the Plaintiffs, the Court must infer the following situation.

First, the Court must infer that had HPVA not suppressed the report

in 1968, a different model building code would have been approved

which would have prohibited the use of plywood.

Such an assertion is highly questionable. The proposal to amend

the building code was rejected before SwRI finished its tests. Thus,

SwRI's tests, which were presumably suppressed by HPVA, could

have had no impact on the board's original decision to reject amending the building code.2

However, even if the Court accepts the notion that HPVA's activities led to the board's decision not to amend the building code, the

Plaintiffs must then argue that had HPVA disseminated the information as soon as it became available, the model code would have prohibited the use of the type of plywood employed.

However, this supposition is unlikely. The report was made available in 1974 and is available now. There is no evidence that any state

(including in particular South Carolina) has changed its building code

due to the release of the full report. Thus, even if HPVA had released

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2 However, the decision was only temporary. Plaintiffs argue that the

issue was going to be reconsidered and the HPVA's actions impacted

reconsideration.

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the report immediately, there is no indication that such a release

would have had any impact on building codes.

The Plaintiffs' causation argument requires even further suppositions. Plaintiffs would also have to contend that, if the building code

changes had been enacted, other states, including South Carolina,

would have enacted them as well.

Yet, South Carolina's present building code allows the use of Class

"C" plywood in home construction. The plywood in the Plaintiffs'

home was Class "C". Therefore, even though the report has long been

available, South Carolina still allows Class "C" plywood. The assertion that had the report been released in 1968, plywood would not be

in the home is unsupportable since the report was released in 1974

and plywood is still allowed in home construction in South Carolina.

The causation scenario proffered by the Plaintiffs is simply too

remote to support proximate cause even at the summary judgment

stage. See Harris v. Rose's Stores, Inc., 433 S.E.2d 905, 907 (S.C.

App. 1993) ("[c]ausation based upon a possibility rather than a probability is not sufficient for a plaintiff to recover."); Carter v. Anderson

Memorial Hosp., 325 S.E.2d 78,81 (S.C. App. 1985) (speculation and

conjecture are not enough to satisfy causation).

Turning to Plaintiffs' claim of a civil conspiracy, in South Carolina, in order to sustain an action for civil conspiracy, Plaintiffs must

prove that HPVA's actions were the proximate cause of their injury.

Todd v. South Carolina Farm Bureau Mut. Ins., 278 S.E.2d 607, 611

(S.C. 1981). Since we conclude HPVA's actions were not the proximate cause of Plaintiff's injuries, Plaintiffs' claim for damages due to

civil conspiracy must fail.

On the facts upon which the Plaintiffs rely, causation is simply too

remote to sustain their action. The judgment is accordingly

AFFIRMED.

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